EMPRESS SOFTWARE INC.
( "ESI")
PROGRAM LICENSE AGREEMENT
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING ANY ESI PROGRAMS, YOU ("CUSTOMER"), AS AN ENTITY OR INDIVIDUAL ARE LICENSING THOSE PROGRAMS AND ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MUST NOT INSTALL OR USE THE PROGRAMS.
ESI and the Customer agree as follows:
1. LICENSE
ESI hereby grants and the Customer accepts a non-transferable and non-exclusive license (the "License") to use the Programs and Documentation relating thereto as allowed by the Installation Key (collectively the "Licensed Materials") solely for the purposes of processing the Customers' own data, or evaluating the Licensed Materials upon the terms and conditions herein.
2. TERM
The License shall commence on the date on which the Programs are installed by Customer (the "Effective Date") and shall continue (i) for as long as the Customer uses the Licensed Materials; (ii) unless terminated as provided herein; (iii) unless the Installation Key has expired.
3. LOCATION
The License authorizes the Customer to use the Programs in machine readable form on one specified machine. However, the Programs may be used temporarily on another machine for backup only.
4. FEES
The License Fee for the Licensed Materials will be invoiced on shipment unless the Licensed Materials are used for solely for evaluation. The Service Fee for Maintenance Services will be invoiced on shipment and annually thereafter on the anniversary of the shipment date. The Service Fee on such anniversary dates shall be the fee then currently in effect for such services. The Customer shall pay all amounts within 30 days of the date of invoice. Overdue payments shall bear interest at the rate of 2 percent per month (24% per annum) on the amount outstanding from the date when the payment is due until the date payment in full is received by ESI.
5. TAXES
Fees do not include any applicable taxes. If the Customer is required to withhold any taxes or other charges pursuant to any laws to which the Customer is subject, the Customer will pay as additional fees such additional amounts as will result in ESI receiving amounts it would have otherwise received if no such tax or charge had been imposed.
6. TITLE
Title to and ownership of the Licensed Materials shall at all times remain with ESI and the Customer shall acquire no rights to same except in accordance with the terms of the License.
7. ADDITIONAL LICENSE FOR APPLICATIONS DEVELOPMENT TOOLS
When the Customer uses a Program which is an applications development tool ("Applications Development Tool") to develop its own applications (the "Customer Applications"), such Customer Applications may be used solely for processing the Customer's own data except that the Customer may license a third party if that third party has licensed its copy of the Licensed Materials from ESI.
8. WARRANTY
ESI warrants and represents to the Customer that it has full right and authority to enter into this Agreement and to license the Licensed Materials.
9. MAINTENANCE SERVICES
ESI shall provide maintenance and enhancement services ("Maintenance Services") for the fees then in effect ("Service Fee") by providing to the Customer:
Fees do not include any expenses associated with travel to the Customer's place of business in provision of Maintenance Services. ESI will not provide support for any Customer Applications. ESI may cancel Maintenance Services at any time following the first anniversary date of the License on 90 days prior written notice to the Customer.
10. PROPRIETARY RIGHTS AND COPYRIGHT
ESI has a proprietary interest in all of the Licensed Materials which are the copyright information of ESI. Title, ownership rights, and intellectual property rights in the Licensed Materials shall remain in ESI. Customer acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with ESI's ownership of or rights with respect to the Licensed Materials. The Customer shall not copy the Licensed Materials in whole or in part except as provided in this Agreement.
11. INSTALLATION
The Customer shall be solely responsible for the proper installation, operation and use of the Programs. Installation and instruction services may be obtained from ESI as additional services at extra cost.
12. SUBLICENSE AND ASSIGNMENT
The Customer may not, without the prior written approval of ESI, sublicense, assign or otherwise transfer its interest in the Agreement, the License or any rights granted under this Agreement whether voluntarily, by operation of law, by merger, amalgamation or other corporate reorganization or otherwise.
13. DEFAULT
A breach of this Agreement shall be deemed to have occurred when:
Upon the occurrence of any such default or breach, ESI, at its option, shall have the right to terminate the License or this Agreement without intending to waive, remove, limit or in any way restrict any legal or equitable remedy at law upon the Customer's threatened or actual breach of its obligations under the terms of this Agreement. The Customer agrees that ESI may apply to a court of competent jurisdiction for an injunction restraining any such threatened or actual breach.
14. LICENSE TERMINATION
Upon the termination of the License or this Agreement, the Customer shall return the original and destroy all copies of the Licensed Materials relating thereto. By written notice to ESI, the Customer shall certify that all such Licensed Materials have been returned or destroyed.
15. WARRANTY DISCLAIMER
THE WARRANTIES OF ESI HEREUNDER SHALL BE THE FULL EXTENT OF ESI'S OBLIGATIONS IN ALL OR ANY SITUATIONS INVOLVING PERFORMANCE OR NON-PERFORMANCE OF THE PROGRAMS OR PARTS THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
ESI does not represent or warrant:
16. LIMIT OF LIABILITY
For breach or default by ESI of any of the provisions of this Agreement, with the exception of the indemnification for Copyright contained in "Copyright Indemnity" hereof, ESI's liability for damages, regardless of form of action, whether based on contract or tort, including negligence, shall not exceed the amount paid hereunder by the Customer for the License.
No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen, or, in the case of non-payment, more than two years after the date such payment was due.
17. CONTENT ACKNOWLEDGEMENT
Customer acknowledges that the Licensed Materials contain material that (i) was wholly developed by ESI; (ii) was not wholly developed by ESI.
18. COPYRIGHT INDEMNITY
ESI will defend the Customer from any and all claims, actions, damages, liabilities, costs, and expenses, arising only out of any claims that the ESI material wholly developed by ESI ("ESI Material") infringes any United States or Canadian copyright; provided that ESI will not be liable for any claim based upon any infringement by any part of any ESI Material which have been changed by someone other than ESI. This provision shall not apply unless the Customer informs ESI as soon as practicable of any claim or action alleging such infringement and unless the Customer shall have given ESI full opportunity to control the response thereto and the defence thereof, including, without limitation, any agreement relating to the settlement thereof.
19. GOVERNING LAW
This Agreement shall be exclusively governed by, subject to and interpreted in accordance with the laws in force in the jurisdiction in which the head office of ESI resides.
20. SURVIVAL
It is agreed that the provisions of Sections entitled "Proprietary Rights and Copyright", "Sublicense and Assignment", "Warranty Disclaimer", "Limit of Liability" and "Copyright Indemnity" shall remain in force and effect after the termination of this Agreement until such time as the parties may mutually agree to release of the obligations contained therein.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. This Agreement shall not be modified, amended, rescinded, cancelled or waived in whole or in part, except by written amendment signed by the parties hereto.